March 08, 2011

D.C. Bar Counsel Urges Court to Disbar Former Federal Prosecutor

A lawyer for the District Office of Bar Counsel today urged a court here to disbar a former federal prosecutor who misused government vouchers in high-profile homicide cases in which he provided thousands of dollars to relatives of witnesses, retired police officers and inmates in exchange for information.

Deputy Bar Counsel Elizabeth Herman asked the D.C. Court of Appeals, the city’s highest court, to send a message to all prosecutors in ordering the disbarment of former Assistant U.S. Attorney G. Paul Howes, who prosecuted gang and homicide cases in Washington during the 1990s.

A three-judge panel—judges Anna Blackburne-Rigsby and Inez Smith Reid and Senior Judge William Pryor—must decide whether to strip Howes of his ability to practice law for misconduct that occurred more than a decade ago. The appeals court dug into the disciplinary case for nearly 45 minutes today, examining the extent to which the violations were egregious and whether the passage of time should serve as a mitigating factor.

Herman said Howes brought “tremendous harm to the criminal justice system and the public’s perception of the criminal justice system” and asked the court to use the case to set an example for other prosecutors.

“What we’d like this court to say to the public, the bar, to prosecutors and litigators everywhere is that, even if it’s tempting to cross the line, you can’t do it and expect that the validity of the convictions will be upheld if you’ve acted unethically,” Herman said in court. “That’s what we’re asking the court to do by imposing the utmost sanction.”

Herman said the lapse in time from when the Justice Department first investigated and exposed the misconduct should not weigh in favor of Howes. The former prosecutor, Herman said, has continued to practice law. The passage of time has not hurt Howes, said Herman. Howes is a partner in the San Diego office of Robbins Geller Rudman & Dowd.

Nossaman partner Paul Knight, representing Howes, painted the former prosecutor as a model government lawyer who toiled long hours in his quest to protect the residents of the District. Howes, Knight argued, followed office procedure on the use of witness vouchers.

“There are many people you want to talk to who you do not want to expose. This is a situation where you want to get information from as many sources as possible,” Knight said in court. “You want to corroborate your information and you bring them down to your office but never intend to put them on the stand. That’s common practice. Homicides are solved all the time that way.”

Reid seemed to reject Knight’s argument. “It’s not common policy for the U.S. Attorney’s Office to provide vouchers to incarcerated prisoners, ” the judge responded to Knight. “Nor is it common practice in the U.S. Attorney’s Office to provide vouchers to retired detectives—vouchers in the thousands and thousands of dollars. At the end of the day, don’t we have to ask ourselves the question of whether or not we have an aggravating circumstance here?”

Knight, wanting to put Howes’ conduct in context, dwelled on the violence in Washington during his client’s time as a prosecutor here.

“We were the murder capital of the world,” Knight said. “This is a man who spent 15 hours a day, seven days a week, working on these cases. He was following the procedures of the United States Attorney’s Office—the way he was trained. He did what prosecutors do to solve these kinds of cases. He worked as hard as he possibly could. He was protecting the citizens of this city.”

Knight also repeatedly trumpeted the adversarial nature of criminal trials in which judges serve as referees. “If a defense attorney wants documents, you go to the court and say, ‘Judge, I want the documents,’” Knight said.

Howes, Knight said, did not seek personal enrichment and he did not seek public glory as a prosecutor. “This is a man who every day went to court, and his sole purpose was defending the citizens of the District of Columbia,” Knight said. “There was never an intent to get publicity for himself.”

Blackburne-Rigsby appeared the most skeptical of the panel judges. She questioned whether Howes’ cooperation with bar counsel can be considered mitigation. She noted that certain stipulations, in which Howes earlier acknowledged ethical lapses, have been “hotly litigated, contested and in many ways backed away from.”

Knight said certain stipulations that Howes made in the case—for instance, his failure to timely disclose witness vouchers—were “regrettable.” Many stipulations, he said, “were entered into that made no sense,” he said.

Knight also questioned whether certain vouchers had to be turned over to defense lawyers in the first place. “These are not black and white issues. These are close calls,” Knight said. “These are judgments made by prosecutors on their feet. These aren’t the kind of things that you make in your office or in passing if you have hours to look at something. These are the very tough decisions you make on your feet.”

Irrespective of unresolved legal questions, Pryor said, Howes’ conduct harmed the government. Prison sentences in certain cases that Howes handled, the judge noted, were reduced because of Howes’ behavior. “There was not only a reduction. There was a substantial reduction,” Reid added from the bench.

The three professional responsibility board members who voted for a three-year suspension, Herman argued, bought into the idea that the ends justify the means. Herman called that notion of prosecutorial decision-making a “dangerous philosophy” that, if the D.C. Court of Appeals approves it, will encourage government misconduct.

“No one questions that he wanted to win convictions,” Herman said about Howes. “That’s why he stepped over the line.”